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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
EMMA CARSON POPE, by and through
her Guardians ad Litem; Jimmy M.
Pope and Jeannie B. Pope;
JIMMY M. POPE, individually; and
JEANNIE B. POPE, individually,
No. 02 CVS 765
CUMBERLAND COUNTY HOSPITAL SYSTEM,
INC. formerly Cumberland County
Hospital Authority, Inc., d/b/a
Cape Fear Valley Medical Center;
LINDA T. MCALISTER, M.D., P.A. and
LINDA T. MCALISTER, M.D., Individually,
Appeal by plaintiffs from order entered 15 March 2004 by Judge
Ola M. Lewis in Cumberland County Superior Court. Heard in the
Court of Appeals 11 May 2005.
Anderson, Daniel & Coxe, by Bradley A. Coxe, for plaintiffs-
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P. by Mark E.
Anderson and Kathrine E. Downing, for defendant-appellee.
Plaintiff Jeannie Pope was admitted to the Cape Fear Valley
Medical Center (CFVMC) in Fayetteville, North Carolina for
induction of labor on 2 February 1999. At approximately 4:20 a.m.
on 3 February 1999, Dr. Linda McAlister examined the status of Ms.
Pope's cervix. Dr. McAlister determined that she would rupture themembranes in order to expedite delivery and then immediately insert
a fetal scalp electrode to monitor the fetal heart rate more
accurately. At 4:24 a.m Dr. McAlister artificially ruptured Ms.
Pope's membranes. In preparation for the attachment of the fetal
scalp electrode, Nurse McLaurin, a labor and delivery nurse,
disconnected the external monitor which was recording the heart
rate. Dr. McAlister first attempted to insert the electrode at
4:25 a.m., and then a second time, but could not get a consistent
reading. Dr. McAlister made a third attempt at 4:31 a.m. and at
that time observed blood on her glove as she withdrew her finger
from the cervix. The reading of the fetal scalp electrode
indicated that the fetal heart rate had crashed, a condition known
as bradycardia. Dr. McAlister ordered an emergency Cesarean
section delivery. While Dr. McAlister was absent from the room
preparing for the procedure, the bleeding from Ms. Pope's uterus
When plaintiff Emma Pope was born at approximately 4:44 a.m.,
she was pale and had no heartbeat. A team of neonatal nurse
practitioners (NNPs) attempted to resuscitate Emma but did not
administer a blood transfusion. Dr. Gallagher, a neonatologist,
arrived fifteen minutes after the birth to examine the placenta and
consult with Dr. McAlister. Dr. Gallagher then ordered that an
emergency blood transfusion take place, and Emma received the
transfusions at 5:21 and 5:25 a.m. But, as a result of the fetal
bleeding which occurred prior to the blood transfusions, Emma
sustained irreversible brain damage. Plaintiffs filed an action in Cumberland County Superior Court
against Cumberland County Hospital System (defendant Hospital) and
Dr. Linda McAlister. Plaintiffs' respondeat superior claims
against defendant Hospital were based upon the care provided by the
labor and delivery nurses and by the NNPs on the resuscitation
team. The trial began on 23 June 2003. At the close of
plaintiffs' evidence, both defendants moved for directed verdicts.
The trial court orally granted the motions as follows: a directed
verdict in favor of Dr. Linda McAlister on all claims; and a
directed verdict in favor of defendant Hospital with respect to the
care rendered by the labor and delivery nurses. Thus, the only
issue submitted to the jury was the alleged negligence by the
neonatal nurses. The jury could not reach a unanimous verdict, and
the court declared a mistrial on 9 August 2003.
The trial court entered written orders on 9 October and 14
October 2003 which, respectively, granted a directed verdict on the
labor and delivery claims and granted a directed verdict on all
claims against Dr. Linda McAlister. Plaintiffs subsequently
settled their appeal against Dr. McAlister. Thereafter, in an
order filed 15 March 2004, the trial court denied plaintiffs'
motion for relief from judgment and affirmed the 9 October order
granting defendant's motion for directed verdict on the claims
relating to the labor and delivery nurses. Plaintiffs appeal.
Plaintiffs assign error to the trial court's entry of directed
verdict, arguing that there was sufficient evidence presented at
trial to defeat defendant's motion for a directed verdict withrespect to the labor and delivery care. When a defendant moves
for a directed verdict in a medical malpractice case, the question
raised is whether plaintiff has offered evidence of each of the
following elements of his claim for relief: (1) the standard of
care; (2) breach of the standard of care; (3) proximate causation;
and (4) damages. Felts v. Liberty Emergency Service, 97 N.C. App.
381, 383, 388 S.E.2d 619, 620 (1990) (internal quotation omitted).
A directed verdict is rarely appropriate in a negligence case
involving the application of a standard of care. See Leatherwood
v. Ehlinger, 151 N.C. App. 15, 19, 564 S.E.2d 883, 886 (2002) (the
issue of whether the defendant breached the standard of care is
ordinarily a factual question for the jury; directed verdict in
negligence cases is seldom appropriate), disc. review denied, 357
N.C. 164, 580 S.E.2d 368 (2003).
Defendant contends that this Court should affirm the directed
verdict on the basis that plaintiffs failed to establish proximate
causation. In particular, defendant argues that the failure of the
NNPs on the resuscitation team to immediately order and infuse
blood into Emma Pope when she did not respond to resuscitation
efforts was an intervening cause of her injuries.
As causation is an inference of fact to be drawn from the
circumstances, proximate cause is ordinarily a jury question.
Taylor v. Interim Healthcare of Raleigh-Durham, Inc.
, 154 N.C. App.
349, 353, 574 S.E.2d 11, 14 (2002), disc. review denied
, 356 N.C.
695, 579 S.E.2d 102 (2003); see also Leatherwood
, 151 N.C. App. at24, 564 S.E.2d at 889.
North Carolina defines intervening cause as
an independent force which entirely supercedes the original action
and renders its effect in the chain of causation remote. Adams v.
, 312 N.C. 181, 194, 322 S.E.2d 164, 173 (1984). Thus, in
order for the conduct of the intervening agent to break the
sequence of events . . . the intervening conduct must be of such
nature and kind that the original wrongdoer had no reasonable
ground to anticipate it. Id.
Plaintiffs argue that the evidence supports two theories of a
breach of the standard of care by the labor and delivery nurses and
that each breach was a proximate cause of Emma Pope's injuries.
(See footnote 1)
Plaintiffs introduced the deposition testimony of Dr. McAlister,
and this testimony was read into the record. Dr. McAlister
testified that Nurse McLaurin was present in the room throughout
the fetal scalp electrode attempts which resulted in the bleeding
and the call for an emergency C-section. Dr. McAlister further
testified that she relied upon the labor and delivery nurses to
advise the NNPs that there had been a bleeding episode. Plaintiffs
also introduced Nurse McLaurin's deposition testimony, which
revealed that she was present in the room during the resuscitation
efforts of the NNPs and that she did not at any point inform them
of the bleeding. Plaintiffs' expert witness Dr. Dillard testified
that Nurse McLaurin breached the standard of care by failing to
communicate the information to the resuscitation team. He statedthat blood could have been available within five minutes of being
ordered and that, had the NNPs been aware of the nature of the
bleeding, they would have ordered blood immediately. Dr. Dillard
further testified that the failure to have blood available and to
give it immediately after the birth was the proximate cause of
Emma's brain damage.
Defendant argues that the following testimony by Dr. Dillard
demonstrates that the conduct of the neonatal nurses was an
Q: Dr. Dillard, do you have an opinion to a
reasonable degree of medical certainty, if the
jury finds from the facts in its greater
weight [that the NNPs were not given the
information about the bleeding] . . . as to
whether or not they breached the standard of
care in the way they resuscitated this baby
even if they were completely in the dark?
A: Yes, because once they realized the baby
was not responding to the resuscitation and
was pale, they had to assume that the pallor,
the pale color, was from blood loss. At that
point they would have asked for blood and then
immediately given . . . 20 milliliters per
kilogram or 60 milliliters of normal saline
while waiting for the blood to get from the
blood bank. Typically in a hospital such as
this, one can run to the blood bank, sign out
the blood, get back up, and have it available
to give within five minutes. So from 4:47 to
4:52 they could have been giving more volume,
having realized that the baby had lost a lot
of blood, and then by 4:52, they could have
been giving blood.
. . . .
Q: All right, so in other words, this is your
opinion that reasonable [NNPs] . . . should
have recognized by 4:47, this baby needs blood
and ordered it?
A: Given the lack of response to the
resuscitation over a three-minute period with
intubation, chest compressions, and a baby who
remained pale, that's-- that would have been
good evidence for the need to get blood.
However, we must review the evidence in the light most favorable to
plaintiffs and deny the motion for directed verdict if there is
more than a scintilla of evidence to support each element of
plaintiffs' claim. See Taylor
, 154 N.C. App. at 353, 574 S.E.2d at
14; Williamson v. Liptzin
, 141 N.C. App. 1, 9-10, 539 S.E.2d 313,
318-19 (2000), disc. review denied
, 353 N.C. 456, 548 S.E.2d 734
(2001). Moreover, except in cases so clear that there can be no
two opinions among fair-minded people . . . [the jury should]
determine whether the intervening act and the resultant injury were
such that the original wrongdoer could reasonably have expected
them to occur as a result of his own negligence. Barber v.
, 130 N.C. App. 380, 388-89, 502 S.E.2d 912, 917-18
(internal quotation omitted), disc. review denied
, 349 N.C. 227,
515 S.E.2d 699 (1998).
Here, plaintiffs presented evidence that the actions of the
NNPs were a foreseeable result of the failure of the labor and
delivery nurses to report their observations of bleeding associated
with the fetal distress. Dr. Dillard testified that the way the
resuscitation was conducted indicated that the NNPs had no idea
that the baby had lost blood; he stated that if the NNPs had the
information of the significant bleeding, that the standard of care
required them to order blood for the baby. Defendant has not shown
that, as a matter of law, the actions of the NNPs were anindependent force which superceded the alleged negligence of the
labor and delivery nurses. Plaintiffs' evidence was sufficient to
create an inference of causation for the jury, and the trial court
erred in entering directed verdict on the negligence claims
relating to defendant's labor and delivery nurses.
Defendant sets forth several cross-assignments of error,
arguing that the trial court erred in admitting testimony by
plaintiffs' experts Dr. Ross and Dr. Dillard on the standard of
care for labor and delivery nurses at CFVMC. Defendant contends
that it is entitled to a directed verdict on this basis because
there were no other expert witnesses to establish negligence by the
labor and delivery nurses. However, in reviewing a trial court's
order granting a motion for directed verdict, this Court must
consider both admissible evidence and inadmissible evidence
improperly admitted over the objection of the opposing party. See
Haney v. Alexander, 71 N.C. App. 731, 733-34, 323 S.E.2d 430, 432
(1984), cert. denied, 313 N.C. 329, 327 S.E.2d 889 (1985). As the
inadmissibility of plaintiffs' expert testimony is not an
alternative basis in law to support the directed verdict, this
argument is not the proper subject of a cross-assignment of error.
See N.C.R. App. P. 10(d) (appellee may cross-assign as error only
those actions or omissions of the trial court which deprived the
appellee of an alternative basis in law for supporting the
judgment, order, or other determination from which appeal was
taken); see also Welling v. Walker, 117 N.C. App. 445, 449, 451S.E.2d 329, 332 (1994) (where evidentiary argument does not provide
an alternative basis in law to support the judgment, appellee may
not cross-assign error), disc. review allowed, 339 N.C. 742, 454
S.E.2d 663, and review dismissed as improvidently granted, 342 N.C.
411, 464 S.E.2d 43 (1995).
Plaintiffs have presented evidence sufficient to defeat a
motion for a directed verdict on their negligence claims with
respect to defendant's labor and delivery nurses. We, therefore,
reverse the orders of the trial court granting a directed verdict
to defendant Hospital on the labor and delivery claims.
Judges McGEE and CALABRIA concur.
Since the evidence of one of the two theories of
negligence was sufficient to support an inference of causation,
we do not address the evidence of plaintiffs' second theory.
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